Thursday, February 02, 2006

Slashdot links to an article in IEEE Spectrum today that shows the wrong way to solve the patent mess. The idea is to create a new class of patent valid for only four years that are not required to show that the invention is not obvious before the patent is issued.

I don't think the idea would be attractive to anyone but inventors peddling completely fringe ideas. The new patents would require completely new law to be established. They would provide no international protection and they would conflict with efforts to establish an international system.

The first step to solving the US patent mess is to recognize the fact that it is almost uniquely a US problem. There are certainly overly broad and entirely bogus patents that get approved in othe countries but nowhere near as frequently.

The way to solve the US patent mess is to reform the US patent office.

The first problem is that the USPTO is under-resourced. A patent examiner has an average of 20 hours total to review each application. That 20 hours is not just for the initial examination, it is for dealling with all the followup, drafting questions, drafting replies. Reviews in certain areas (including information technology and biotechnology) get more time, up to 40 hours but this is still completely inadequate for the government to make a considered decision before awarding a private monopoly.

Patent examiners are rated on the speed with which they complete reviews. Dilligence is rewarded, there are few penalties for letting a bogus patent through. The typical examiner will only serve for a year or two in any case. After that they can get a much more lucrative job in a private lawfirm as a patent attorney.

The USPTO lacks the resources it needs to do its job well, but it is not quite accurate to say it is underfunded. The USPTO generates much more revenue through filing fees than it spends. The problem is that it isn't allowed to keep it. For the past decade Congress has considered the USPTO to be a 'profit center'.

Before anything else the USPTO needs to be allowed to keep the resources to do its job. In return it has to do a better job than it does today. In particular it must act to protect the public interest and not just the interests of what it refers to as it's 'customers'.